The laws governing sexual assault and rape in the English and Welsh legal institution is characterised by complexity and practical frustration, specifically, whether deception vitiates consent. Deception within sexual offences is underpinned by a general lack of coherence and piecemeal case law, where there are no obvious boundaries within the canon of case law on where and how to delimit distinctions in deceptive sex. Despite broad agreement that deception undermines the legitimacy of consent and fails to preserve fundamental principle of sexual autonomy, it is not obvious when and under what circumstances consent will be negated. How does one differentiate the rake from the romancer ? The confusion presented within deceptive sexual crimes encompass instances where the claimant has consented to sexual activity, yet has been deceived as to a physical aspect of the encounter, conditional to their consent. Examples of these deceptions could be determined as gender, condom use, marital status, ethnicity, age or religious background. This grey area begs the question, as to whether the consent given, was true consent.
This dissertation has identified the current legal problem as the confused state of deceptive sexual offences in English and Welsh criminal law. Determining when and what deceptions will vitiate consent is an gruelling task. While all deceptions are morally wrong, not all violations caused by the deceit hold adequate foundations for criminalisation. Contradictory case law and vague statutory terms has rendered governable principles inaccessible. The ambiguity registering in the current case law on deceptive sexual offences is problematic. The court’s arbitrary differentiations combined with the uncertainties entrenched within the 2003 SOA has debilitated valid prosecutions, ultimately leading to the legal institutions failure in its enshrined purpose to protect vulnerable individuals. A necessary review of leading case law and academic literature will determine the dominant and repeating principles within this field of sexual offences, in an attempt to identify and preempt enduring precedents, initiating process towards the development of a precise legislative tool.
This paper presents the current status of English and Welsh law, undertaking an in-depth assessment of sections 74 and 76 of the 2003 SOA and reviewing their importance in consideration to four fundamental deception sexual offence cases : Assange v Swedish Prosecution Authority, R (on the application of F) v DPP, R v Mcnally and R v Lawrence. To further broaden this scope of anaylsis, the present status of Swiss law on deceptive sexual offences will be assessed, acting as a comparative source, in the pursuit to identify a solution to ameliorate the entrenched unease encompassing English and Welsh law on deceptive sexual offences.
